Williams v. Terboss

Court for the Trial of Impeachments and Correction of Errors

Williams v. Terboss

2 Wend. 148

CourtCourt for the Trial of Impeachments and Correction of Errors

DecidedDecember 15, 1828

StatusPublished

Cited by2 cases

This text of 2 Wend. 148 (Williams v. Terboss) is published on Counsel Stack Legal Research, covering Court for the Trial of Impeachments and Correction of Errors primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Williams v. Terboss, 2 Wend. 148 (N.Y. Super. Ct. 1828).

Pincite

Opinion

The Chancellor.

- At the common law, the landlord could only distrain property which was actually on the demised premises when he came for that purpose. His right to distrain must also have been exercised during the continuance of the term. (3 Black. Comm. 11, Doct. and Stud, dial 2, ch. 9.) If the tenant fraudulently removed his property and effects from the demised premises either before or after the rent became due, the landlord could not follow and seize them for the rent, unless they were removed by the tenant after the landlord had actually come to distrain, and had view of the goods on the premises. (Gilb. on Distress, 41. 1 Rolle’s Abr. 671, c. 40.) So, if the term expired before the landlord exercised his right to distrain, his remedy was gone, although the tenant still remained in possession of the premises, and with his goods or cattle thereon.

To remedy the first of these defects of the common law, the 13th section of the act of April, 1813, (1 R. L. 437,) provided that the landlord might distrain goods carried off the demised premises, at any time within thirty days after their removal. And the 17th section of the same act authorized the landlord to distrain at any time within six months after the expiration of the term, if the landlord’s right or inter est in the premises still existed, and the possession of the ten [152]*152ant continued. Under the 13th section of this act, the right to distrain goods off the demised premises was limited to thirty days after the removal of the goods, and could not be exercised until the rent was actually due and payable. If the tenant, to prevent a distress, removed his goods more than thirty days before the rent fell due, the landlord could, not distrain thereon. But the 7th section of the act of 1820, (Laws, sess. 43, ch. 196, sec. 7,) authorizes the landlord, at any time within thirty days after the rent becomes due, to dis-train goods which have been carried off of the demised premises. This was intended only as an extension of the remedy given by the 13th section of the act of 1813.

The effect of the several provisions of these two statutes is tó give to the landlord a right to distrain either on or off of the demised premises, at any time within six months after the expiration of the lease, where the interest of the landlord and the possession of the tenant both continue to exist, provided the distress, if made off of the premises, be also made within thirty days after the goods are removed, or within thirty days after the rent becomes due, in those cases where the goods were removed before the rent became due and payable. But he is in no case authorized to distrain goods carried off of the premises, where he would not have been allowed to distrain the same goods, if the tenant had permitted them to remain. The landlord cannot distrain either on or off of the demised premises, where the term has expired, and the tenant has abandoned or yielded up the possession to the landlord.

The pleadings in this case shew the existence of such a state of facts. .1 am therefore of opinion that the demurrer was well taken, and that the judgment of the supreme court should be affirmed.

This being the unanimous opinion of the court, the judgment of the supreme court was thereupon affirmed, with costs.

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The Chancellor.

- At the common law, the landlord could only distrain property which was actually on the demised premises when he came for that purpose. His right to distrain must also have been exercised during the continuance of the term. (3 Black. Comm. 11, Doct. and Stud, dial 2, ch. 9.) If the tenant fraudulently removed his property and effects from the demised premises either before or after the rent became due, the landlord could not follow and seize them for the rent, unless they were removed by the tenant after the landlord had actually come to distrain, and had view of the goods on the premises. (Gilb. on Distress, 41. 1 Rolle’s Abr. 671, c. 40.) So, if the term expired before the landlord exercised his right to distrain, his remedy was gone, although the tenant still remained in possession of the premises, and with his goods or cattle thereon.

To remedy the first of these defects of the common law, the 13th section of the act of April, 1813, (1 R. L. 437,) provided that the landlord might distrain goods carried off the demised premises, at any time within thirty days after their removal. And the 17th section of the same act authorized the landlord to distrain at any time within six months after the expiration of the term, if the landlord’s right or inter est in the premises still existed, and the possession of the ten [152]*152ant continued. Under the 13th section of this act, the right to distrain goods off the demised premises was limited to thirty days after the removal of the goods, and could not be exercised until the rent was actually due and payable. If the tenant, to prevent a distress, removed his goods more than thirty days before the rent fell due, the landlord could, not distrain thereon. But the 7th section of the act of 1820, (Laws, sess. 43, ch. 196, sec. 7,) authorizes the landlord, at any time within thirty days after the rent becomes due, to dis-train goods which have been carried off of the demised premises. This was intended only as an extension of the remedy given by the 13th section of the act of 1813.

The effect of the several provisions of these two statutes is tó give to the landlord a right to distrain either on or off of the demised premises, at any time within six months after the expiration of the lease, where the interest of the landlord and the possession of the tenant both continue to exist, provided the distress, if made off of the premises, be also made within thirty days after the goods are removed, or within thirty days after the rent becomes due, in those cases where the goods were removed before the rent became due and payable. But he is in no case authorized to distrain goods carried off of the premises, where he would not have been allowed to distrain the same goods, if the tenant had permitted them to remain. The landlord cannot distrain either on or off of the demised premises, where the term has expired, and the tenant has abandoned or yielded up the possession to the landlord.

The pleadings in this case shew the existence of such a state of facts. .1 am therefore of opinion that the demurrer was well taken, and that the judgment of the supreme court should be affirmed.

This being the unanimous opinion of the court, the judgment of the supreme court was thereupon affirmed, with costs.

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Bluebook (online)

2 Wend. 148, Counsel Stack Legal Research, https://law.counselstack.com/opinion/williams-v-terboss-nycterr-1828.

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